RECORD OF PROCEEDINGS

IN THE MATTER OF:	DOCKET NUMBER: BC-2021-02020

XXXXXXXXXXXXXX	COUNSEL: NONE

	   	HEARING REQUESTED: NO 

APPLICANT’S REQUEST

1.   His referral officer performance report (OPR) for the reporting period 13 Apr 16 to 12 Apr 17 be void and removed from his record.  

2.   His letter of reprimand (LOR) dated 10 Mar 17 be removed from his officer selection record (OSR).

3.   The notation in the military personnel data system (MilPDS) he was removed from command be deleted.  

APPLICANT’S CONTENTIONS

He received a LOR, referral OPR and was relieved of command as a result of a co-worker’s accusations in retaliation for questioning his conduct regarding travel and suspected time and attendance fraud.  

On 6 Mar 17, while performing duties as commander of a personnel exchange program, he was charged with making a “false official statement.”  On 10 Mar 17, he received a scanned LOR that was emailed from his supervisor at his parent unit.  The accusation against him that he purposefully took actions to receive an airline seat upgrade at government expense was a contradiction in his documented behavior on other flights on the same trip.  In his response, he explained the oversight of forgetting to subtract the cost and committed to paying the difference.  He also supplied evidence of similar upgrades from the same trip where he paid much higher sums for seat upgrades on his own.  

On 28 Mar 17, he was asked to indorse the LOR.  On 30 Mar 17, he was removed from command.  He was then directed to draft his own OPR, in violation of AFI 36-2406, Officer and Enlisted Evaluations Systems, paragraph 1.6.3.6.  He submitted his draft OPR and his supervisor transformed it into a referral OPR.  It was returned to him for rebuttal on 25 May 17.  His supervisor never completed a referral memorandum and did not hand deliver it, discuss it, nor provide any counseling as required by AFI 36-2406, section 1.10.5.1.2.  

On 26 Jul 17, he was reassigned on a permanent change of station (PCS) and received the final version of the OPR via email on 1 Aug 17.  His supervisor included a fictitious date for administering feedback and pre-marked the block where he was to acknowledge proper feedback sessions were conducted with “Yes.”  However, he never received any formal feedback during his tenure as commander.  He alerted him to the discrepancy and the OPR was reaccomplished.  He blamed the lack of a computer generated notice for failure to conduct feedback, in violation of AFI 36-2406, section 1.11.4.  The referral OPR was not forwarded to AFPC for inclusion in his record for more than a year.  After AFPC accepted the report, he submitted an evaluation report appeals board (ERAB) application; however, his request to remove the OPR was denied.  

The punishment was unfairly harsh when compared with more serious offenses committed by others of the same rank in his organization.  Even if he was guilty of the supposed infraction, the $75.00 difference in the price of the seat should not have been grounds for the career ending punishment he received.  He requests the Board consider if this single alleged minor infraction should be grounds for effectively ending his Air Force career progression.  

The referral OPR has resulted in his non-selection for promotion on his primary and subsequent promotion boards and nullified his previous status as a select for senior developmental education (SDE).  

The applicant’s complete submission is at Exhibit A.

STATEMENT OF FACTS

The applicant is an Air Force lieutenant colonel (O-5).  

The applicant provides an email dated 5 Dec 16 from the Chief of Military Personnel Exchange Program stating commanders were encouraged to visit their exchange personnel once a year.  Commanders were encouraged to travel solo as there should be no reason for staff members to accompany the commander on their trips.  

The applicant provides an e-mail dated 9 Mar 17 requesting he provide draft bullets for his OPR.  

The applicant provides a LOR dated 10 Mar 17.  It states on 28 Jan 16, he booked a business class ticket for his temporary duty (TDY) to Indonesia and later sought to have the government pay for the upgrade by falsifying the receipt submitted to the Air Force so the Air Force would not know he flew in business class.  He allowed his colleagues to sit in economy while fraudulently seeking to incur a benefit only for himself.  His supervisor indicated he would recommend the LOR be filed in his OSR.

The applicant’s automated records management system (ARMS) does not include any LOR.

On 28 Mar 17, the applicant was relieved of command for cause.  

The applicant received a referral OPR for the reporting period 13 Apr 16 to 12 Apr 17.  The reason was he falsified a travel receipt for travel upgrade, upgrade witnessed by colleagues left in economy class; he received a LOR.  In his rebuttal response, he stated his colleague reported him after encouraging him to purchase the upgrade.  The colleague’s actions were a result of the unit placing an active duty lieutenant colonel in-place as the commander and to have his travel privileges reinstated.  The additional rater/reviewer considered his comments and referred the OPR to the applicant.  The applicant acknowledged the referral OPR on 17 Aug 17 indicating required feedback was not accomplished.  

The applicant provides an email from PPA Evaluation Appeals dated 9 Oct 18, informing him the ERAB denied his request for removal of the OPR.  The ERAB was not convinced the original report was unjust or wrong.  The board works under the assumption evaluation reports are accurate and objective and an applicant asking for reevaluation must provide strong evidence to overturn the report’s presumed validity.  

For more information, see the excerpt of the applicant’s record at Exhibit B and the advisory opinion at Exhibit C.  

APPLICABLE AUTHORITY/GUIDANCE

AFI 36-2608, Military Personnel Records System, paragraph 8.3.15, authorized early removal of LORs from the OSR.  However, effective 1 Mar 21, per DAPFM 2021-36-03, adverse information will be permanently placed in the master personnel records group, except for the set aside of a court-martial or nonjudicial punishment action.  Removal of adverse information from the master personnel record group may only be directed pursuant to an AFBCMR recommendation.  As noted, there is no LOR in the applicant’s records.  It is unknown if it was placed in his records or removed per previous policy.

AFI 51-509, Appointment to and Assumption of Command, paragraph 14. Relief of Command.  Command is a privilege, not a right.  As such, a superior competent authority may relieve an officer of command for any reason not prohibited by law or policy.  Paragraph 14.2, An officer may be relieved of command for cause, including instances where the superior competent authority has lost confidence in the officer’s ability to command due to misconduct, poor judgment, the subordinate’s inability to complete assigned duties, the interests of good order and discipline, morale, the good of the organization or other similar reasons.  

AIR FORCE EVALUATION

AFPC/DP2SSM recommends denial for removal of the LOR.  In accordance with AFI 36-2907, Adverse Administrative Actions, the LOR is filed in an unfavorable information file (UIF) for two years.  Although there is a restriction on how long the documents will be filed in a UIF, there is no restriction on the member’s personnel information file (PIF).  In accordance with AFI 36-2907, commanders, supervisors and other persons in authority can issue administrative counseling, admonitions and reprimands.  These actions are intended to improve, correct and instruct subordinates who depart from standards of performance, conduct, bearing and integrity.  While no specific standard of proof applies, commanders should utilize the preponderance of evidence standard when evaluating the evidence and every element of the offenses committed.  A LOR is more severe than a counseling or admonition and indicates a stronger degree of censure.  Commanders must file LORs for officers in UIFs.   

The complete advisory opinion is at Exhibit C.

APPLICANT’S REVIEW OF AIR FORCE EVALUATION

The Board sent a copy of the advisory opinion to the applicant on 7 Sep 21 for comment (Exhibit D), and the applicant replied on 5 Oct 21.  In his response, the applicant does not dispute the right of his supervisor to issue the LOR but rather the fairness or administering of it and the referral OPR.  The UIF associated with the LOR expired in 2019.  The action he seeks is to have his referral OPR be voided.

The advisory opinion contains excerpts from AFI 36-2907 dated 26 Nov 14; however, the current version dated 22 May 20, no longer contains the same reference or wording, particularly related to “standard of proof.”  The current version states the standard of proof for adverse administrative actions is the “preponderance of the evidence.”  A preponderance of the evidence exists when it is more likely than not that events occurred as alleged.  Preponderance of the evidence is not determined by number of witnesses or exhibits but by the evidence and evaluating factors such as witness’ behavior, opportunity for knowledge, information possessed, ability to recall, as well as related events and relationship to the matter being considered.  

He requests the Board review the memorandum he submitted in his BCMR application as it contains the history of the LOR and OPR, as well as the irregularities and forbidden actions he witnessed in the administration of both.  It also describes unequal application of punishment in the unit and a pattern of unfounded allegations by the party who accused him.  

The applicant’s complete response is at Exhibit E.

FINDINGS AND CONCLUSION

1.  The application was timely filed.

2.  The applicant exhausted all available non-judicial relief before applying to the Board.

 3.  After reviewing all Exhibits, the Board concludes the applicant is not the victim of an error or injustice.  The Board concurs with the rationale and recommendation of AFPC/DP2SSM and finds a preponderance of the evidence does not substantiate the applicant’s contentions for removal of the LOR.   Moreover, the Board agrees with the decision of the ERAB the applicant’s referral OPR is correct as written and there is no evidence it was unjust or wrong.  The Board also does not find the applicant’s contention he did not receive performance feedback sufficient to warrant removal of the OPR.  The applicant has provided no evidence to show he did not commit the offense for which he received the LOR and referral OPR and was removed from his command position.  He further contends that even if he was guilty, the punishment was unduly harsh given the infraction only amounted to $75.00 in cost difference.  However, the Board finds it was within his commander’s authority and discretion to issue the LOR and the referral OPR for the applicant’s misconduct.  Furthermore, the applicant’s removal from command for cause was in accordance with AFI 51-109, which allows removal from command for cause when there is a loss of confidence, misconduct or poor judgment. Therefore, the Board recommends against correcting the applicant’s records.

RECOMMENDATION

The Board recommends informing the applicant the evidence did not demonstrate material error or injustice, and the Board will reconsider the application only upon receipt of relevant evidence not already presented.

CERTIFICATION

The following quorum of the Board, as defined in Air Force Instruction (AFI) 36-2603, Air Force Board for Correction of Military Records (AFBCMR), paragraph 1.5, considered Docket Number BC-2021-02020 in Executive Session on 23 Nov 21:

, Panel Chair
, Panel Member
, Panel Member

All members voted against correcting the record.  The panel considered the following:

Exhibit A:	Application, DD Form 149, w/atchs, dated 29 May 21.
Exhibit B:	Documentary evidence, including relevant excerpts from official records.
Exhibit C:	Advisory Opinion, AFPC/DP2SSM, w/atchs, dated 1 Sep 21.
Exhibit D:	Notification of Advisory, SAF/MRBC to Applicant, dated 7 Sep 21.
Exhibit F:	Applicant’s Response, w/atchs, dated 5 Oct 21.

 Taken together with all Exhibits, this document constitutes the true and complete Record of Proceedings, as required by AFI 36-2603, paragraph 4.11.9.